Montoya v. Blackhurst
| Decision Date | 04 August 1972 |
| Docket Number | No. 9453,9453 |
| Citation | 84 N.M. 91,500 P.2d 176,1972 NMSC 58 |
| Parties | Ernest P. MONTOYA, Petitioner-Appellee, v. Hon. Richard BLACKHURST et al., Respondents-Appellants. |
| Court | New Mexico Supreme Court |
Petitioner-appellee Ernest P. Montoya, hereinafter referred to as 'appellee,' brought suit in the District Court of Bernalillo County asking for a writ of mandamus to order respondents-appellants Magistrates, hereinafter referred to as 'appellants,' to quash a writ of replevin issued in the Magistrate Court. The District Court issued an alternative writ of mandamus. Before a hearing was held on the alternative writ, appellee amended his petition for a writ of mandamus and asked, in the alternative, for a declaratory judgment that the replevin statute was unconstitutional. Appellee further asked for injunctive relief against appellants. After a hearing, the trial court ruled that the alternative writ be made permanent, declared replevin statutes §§ 36--13--1 through 36--13--6, N.M.S.A., 1953 Comp. (Repl.Vol. 6, 1971 Pocket Supp.), to be unconstitutional, and enjoined appellants from enforcing the replevin statutes.
Appellants' main contentions revolve around the use of mandamus by appellee as the proper remedy to test the constitutionalty of the replevin statutes. Apparently they do not attack the conclusion of the trial court, that the replevin statutes are unconstitutional as a taking of property without notice and an opportunity to be heard.
Appellants' first contention is that the trial court committed error in issuing the writ of mandamus, because mandamus cannot be used to control judicial discretion. Second, appellants contend that the mandamus should not have been issued, because appellee had an adequate remedy at law. Finally, appellants argue that the trial court improperly joined the mandamus action with a complaint for declaratory relief.
Appellants correctly state that mandamus may not be used to control judicial discretion. Section 22--12--4, N.M.S.A., 1953 Comp. When the issue has been placed before the court, the decision as to the constitutionality of a statute is generally within the judicial discretion of the judge. However, this court has held that, in the proper case, mandamus may be used to question the constitutionality of a state statute. State ex rel. Chavez v. Evans, 79 N.M. 578, 446 P.2d 445 (1968); State ex rel. Shepard v. Mechem, 56 N.M. 762, 250 P.2d 897 (1952). Because of the peculiar nature of the replevin proceedings, mandamus was the proper remedy in the cause before us to test the constitutionality of the replevin statutes.
Under the replevin statutes, the plaintiff may replevy goods in possession of the defendant upon posting a bond and filing an affidavit. If the defendant in the replevin action posts a similar bond, he is entitled to keep the goods until such time as there is a hearing before the magistrate on the merits of the plaintiff's claim. Unless the defendant posts the requisite bond, the goods are delivered to plaintiff, assuming he has complied with the statutory requirements. Thus, the defendant may be deprived of the goods without notice and an opportunity to be heard, even though he may have a good defense to the replevin action, if he does not or cannot post the required bond. In order to test the constitutionality of the procedures of the replevin statute, a defendant must appear at the hearing and assert as a defense the unconstitutionality of the replevin statute. If he should lose, on appeal to the district court the issue of a taking without a prior hearing would clearly be moot, because he had his day in court at...
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...Motor Sales v. Judge of the Common Pleas Court for the City of Detroit, 42 Mich.App. 112, 201 N.W.2d 378 (1972); and Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972). 8. Although Mr. Justice Powell and Mr. Justice Rehnquist were Members of the Court at the time that Fuentes v. Shevin ......
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...Mandamus will lie where ordinary proceedings would be inadequate. E. g., State ex rel. Sego v. Kirkpatrick, supra; Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972). The respondent next asserts that judicial intervention is inappropriate because the alleged improper act was within the ......